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International Human Rights
Law Journal
Volume 1
Issue 1 DePaul International Human Rights Law
Journal: The Inaugural Issue
Article 4
2015
And Then There Were Two: Why is the United
States One of Only Two Countries in the World
That Has Not Ratified the Convention on the
Rights of the Child?
Mark Engman
Director, Public Policy and Advocacy at U.S. Fund for UNICEF, [email protected]
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Recommended Citation
Engman, Mark (2015) "And Then There Were Two: Why is the United States One of Only Two Countries in the World That Has Not
Ratified the Convention on the Rights of the Child?," International Human Rights Law Journal: Vol. 1: Iss. 1, Article 4.
Available at: http://via.library.depaul.edu/ihrlj/vol1/iss1/4
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And Then There Were Two: Why is the United States One of Only Two
Countries in the World That Has Not Ratified the Convention on the
Rights of the Child?
Cover Page Footnote
This article reflects the views of the author, and does not represent the views of their employers.
This article is available in International Human Rights Law Journal: http://via.library.depaul.edu/ihrlj/vol1/iss1/4
Engman: And Then There Were Two
I.
Introduction
Twenty-five years ago, the United Nations General Assembly (‘U.N. General Assembly’)
unanimously adopted the Convention on the Rights of the Child (hereinafter the “CRC”),
which became the most widely accepted human rights treaty in history.1 Today, every
nation in the world is a party to the CRC – except for two: Somalia,2 and the United
States.34
This article will analyze the politics behind America’s failure to ratify this treaty. That
may seem a little out of place in a law journal, but in reality the United States’ (‘U.S.’)
acceptance or rejection of international law is as much a matter of politics as it is of
policy.
II.
The U.S. Treaty Ratification Process
To understand the political motivators behind the U.S.’ failure to ratify the CRC, it is
imperative to acknowledge the treaty process. The U.S. Constitution gives the
President the authority to make treaties, although the Senate must concur by 2/3
majority of the present Senators.5 Additionally, the Constitution explicitly recognizes
treaties to be part of “the supreme Law of the Land”:
This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made,
or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the Contrary
notwithstanding.6
1
A World of Difference: 25 CRC Achievements, U.N. Children’s Fund (June 18, 2014),
http://www.unicef.org/crc/index_73549.html.
2
Although the Somali Government celebrated its decision to ratify the CRC in January 2015, Somalia still
has not officially completed the process by depositing its instruments of ratification at the United Nations.
See
“UN
lauds
Somalia
as
country
ratifies
landmark
children’s
rights
treaty”
http://www.un.org/apps/news/story.asp?NewsID=49845#.VUvX7I5Viko
3
The full list of parties to the CRC: See U.N. Convention on the Rights of the Child, 1577 U.N.T.S. 3,
https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-11.en.pdf.
The
list
includes South Sudan, but not Somalia.
4
Until recently, South Sudan had been on the list of non-parties to the CRC. However, South Sudan
ratified the Convention in January 2015, and completed the formal ratification process.
See
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15919&LangID=E#sthash.LYp
DNkqE.dpuf
5
U.S. Constit. article II, § 2.
6
Id. at art. VI.
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International Human Rights Law Journal, Vol. 1 [2015], Iss. 1, Art. 4
Although the treaty ratification process itself is extensive, the ratification of a treaty is
rather straightforward:7
i)
Negotiation: Representatives of the President work with
those from other governments to agree on the substance,
terms, wording, and form of an international agreement.8
ii)
Signature: If the President decides that a treaty is in the
Nation’s best interests, the President (or designated
representative; such as an Ambassador or the Secretary of
State) will sign the treaty.9 However, signing a treaty does
not in itself create law. When the President signs a treaty, it
commits the President to seeking its ratification. In addition,
the U.S. Government is obligated to refrain, in good faith,
from acts that would defeat the purpose of the treaty, even
before ratification.10
iii)
Treaty Submission to the U.S. Senate: The next step in
the ratification process is for the Executive Branch to present
the treaty to the U.S. Senate.11 Unfortunately, it is not as
simple as just sending the text of the treaty. The U.S.
Department of State is responsible for compiling a package
of documents that accompany the treaty by addressing the
policy benefits to the United States, as well as potential
7
Treaties:
The
Senate’s
Role
in
Treaties,
U.S.
Senate,
available
at
http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm; See also Staff of Cong.
Research Serv. Library of Cong., 106th Cong., Treaties and Other International Agreements: The Role of
the United States Senate (Comm. Print 2001).
8
Id.
9
According to Harold Koh, three explanatory pathways help explain state compliance with international
law; these explanations can also help provide a framework for understanding why states do or do not sign
on to treaties. Under the three pathways that Koh provides, whether the U.S. decides to sign on to a
treaty depends on a weighing of self-interest, domestic structure, and international norms embodied in the
treaty that the U.S. also accepts and respects. The first explanation is a rationalistic instrumentalist
explanation that views international rules as instruments whereby states seek to attain their national
interests. In essence, states obey international law when it serves their short or long term self-interest to
do so. The second explanation focuses on rule-legitimacy and national identity. A nation’s domestic
structure determines whether it complies with international law. Under this view, a liberal state, one that
has a form of representative government, guarantees of civil and political rights, and a judicial system
dedicated to the rule of law, is more likely to comply with international law. The third explanation is
constructivist which suggests that states and their interests are socially constructed by “commonly held
philosophic principles, identities, norms of behavior, or shared terms of discourse.” This explanation
focuses on the role that norms play in forming national identities. Norms determine who the actors are
and what rules they must follow if they wish to ensure that particular consequences follow from specific
acts. See generally Harold Koh, Why Do Nations Obey International Law?, 106 Yale L. J. 2599, 2632
(1997).
10
Michael John Garcia, Cong. Research Serv., International Law and Agreements: Their
Effect Upon U.S. Law, (2015), available at http://fas.org/sgp/crs/misc/RL32528.pdf.
11
Treaties: The Senate’s Role in Treaties, supra note 6.
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2
Engman: And Then There Were Two
risks.12
The package must include: (1) whether the
proposed treaty may have a significant regulatory or
environmental impact, and (2) an analysis of the issues
surrounding the treaty’s implementation (for example:
whether the agreement is self-executing or whether
domestic implementing legislation or regulations are
necessary to comply with the treaty obligations).13 In
addition, the Department of State may propose a set of
Reservations, Understandings, and/or Declarations (‘RUDs’);
these provisions define how the U.S. would interpret and
implement the treaty, if ratified.14
iv)
Senate Consideration and “Advice and Consent”: With
the treaty package in hand, the Senate Foreign Relations
Committee can begin its consideration. The Committee can
vote to send the treaty to the full Senate for action, with a
favorable or unfavorable recommendation, or without any
recommendation at all.15 The Committee could also decide
to ignore the treaty entirely.16 If the Committee fails to act on
the treaty, it is not returned to the President.17 Treaties,
unlike Bills and other legislative measures, remain available
to the Senate from one Congress to the next, until they are
disposed of or withdrawn by the President. If a treaty is
presented to the full Senate, the Senate considers whether
to give its “advice and consent.”18 Approval requires 2/3
majority, or 67 votes out of 100 total Senators.19 The Senate
may make its approval conditioned on the consent resolution
amendments to the text of the treaty, its own RUDs, or other
statements.20
v)
Return to the President: Only the President, acting as the
chief diplomat of the United States, has the authority to ratify
a treaty.21 With the Senate’s approval, the President can
proceed with the formal process of ratification.22 The formal
12
Id.
Id.
14
Id.; See also Optional Protocol to the Convention on the Rights of the Child on the Involvement of
Children
in
Armed
Conflict:
Declarations
and
Reservations,
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11b&chapter=4&lang=en#EndDec.
15
Id.
16
Id.
17
Id.
18
Id.
19
Id.
20
Id.
21
Id.
22
Id.
13
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International Human Rights Law Journal, Vol. 1 [2015], Iss. 1, Art. 4
process includes submitting documents proving the U.S.
Government’s agreement to abide by the treaty, as well as
any RUDs, to an institution (called a “depositary”).23 The
deposit of the instruments of ratification establishes the
consent of a country to be held accountable to the terms of
the treaty.24 Once the treaty has been ratified by U.S., the
treaty must first be ratified by the specified number of States
(each treaty is different, and the number is stipulated in the
treaty itself) before the treaty can enter into force and
become binding on the member States.25
III.
Brief History of the CRC
The CRC was originally drafted as the result of a Polish proposal for the 1979
International Year of the Child, which commemorated the twentieth anniversary of the
1959 Declaration of the Rights of the Child.26 After ten years of negotiations, on
November 20, 1989, the U.N. General Assembly voted unanimously to approve the
treaty and send it out for signatures. By September of 1990, the requisite number of 20
countries had ratified the treaty, so the treaty was now in force.27
Although other international human rights treaties mention children, the CRC
incorporated a comprehensive set of rights relevant to children – economic, social,
cultural, and political.28 The CRC consists of 54 articles,29 built on four core principles:
1)
2)
3)
4)
Non-discrimination: rights provided herein are guaranteed to
all children, without exception (Article 2);
Best interests of the child: all stakeholders must consider the
impact of its actions (or inactions) on children (Article 3);
Right to life, survival, and development (Article 6); and,
Respect for the views of the child, according to age and
maturity (Article 12).30
To address ongoing concerns about children in armed conflict and the exploitation of
children, two Optional Protocols to the CRC were adopted by the U.N. General
Assembly in May 2000, and came into force in early 2002. The Optional Protocol on the
23
Id.
Id. See also Staff of the Congressional Research Service, 106th Cong., Rep. on Treaties and Other
International Agreements: The Role of the United States Senate (Comm. Print 2001), available at
http://www.gpo.gov/fdsys/pkg/CPRT-106SPRT66922/pdf/CPRT-106SPRT66922.pdf.
25
Id.
26
Legislative History of the Convention of the Rights of the Child, U.N. Office of the High Comm’r for
Human Rights, Vol. 1, No. HR/PUB/07/1 (2007), available at .
27
U.N. Convention on the Rights of the Child, 1577 U.N.T.S. 3 (Nov. 20, 1989).
28
The State of the World’s Children Special Edition: Celebrating 20 Years of the Convention on the
Rights of the Child, U.N. Children’s Fund at 2, U.N. Sales No. 10.XX.1 (2009).
29
U.N. Convention on the Rights of the Child, supra note 26.
30
The State of the World’s Children Special Edition, supra note 27, at 6-9.
24
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Engman: And Then There Were Two
Involvement of Children in Armed Conflict (CRC-OPAC) requires governments to
prohibit the conscription of anyone under 18 into armed forces, and to criminalize the
recruitment of children under 18 into non-government armed forces.31 The Optional
Protocol on the Sale of Children, Child Prostitution, and Child Pornography (CRCOPSC) includes obligations to criminalize such practices, to strengthen enforcement of
relevant laws and prosecution of offenders, and to protect and assist child survivors of
such exploitation and abuse.32
In addition, a third Optional Protocol to the CRC on Communications Procedures (OP3CRC) sets out a complaints procedure for children, or their representatives, from states
that have ratified the protocol to bring complaints about violations of their rights directly
to the U.N. Committee on the Rights of the Child, only after all domestic remedies have
been exhausted.33 The third protocol entered into force in April 2014 when it was
ratified by a tenth State.34 The protocol currently has 48 signatories, of which only 16
States have ratified it.35
All parties to the CRC, as well as to the Optional Protocols, are required to report
regularly to the Committee on the Rights of the Child (‘CRC Committee’) on their
progress in implementing the treaties.36 The CRC Committee is a body of 18
independent experts, elected periodically by State parties to the Convention.37 In
addition, the CRC Committee welcomes reports from Non-Governmental Organizations
(NGOs) and from key international organizations, such as the United Nations Children’s
Fund, better known as UNICEF.3839
The CRC Committee examines each report and addresses its concerns and issues
recommendations to the State party in the form of “concluding observations.”40 In
addition, the CRC Committee publishes its interpretations of specific human rights
31
U.N. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in
Armed Conflict, G.A. Res. 54/263, U.N. Doc. A/Res/54/263 (Feb. 12, 2002).
32
U.N. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, G.A. Res. 54/263, U.N. Doc. A/Res/54/263 (Jan. 18, 2002).
33
U.N. Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure,
A/RES/66/138
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11d&chapter=4&lang=en (Dec. 19, 2011). .
34
Id.
35
Id.
36
U.N. Convention on the Rights of the Child, supra note 26, at art. 44.
37
U.N. Committee on the Rights of the Child: Membership, U.N. Office of the High Comm’r on Human
Rights, http://www.ohchr.org/EN/HRBodies/CRC/Pages/Membership.aspx.
38
U.N. Committee on the Rights of the Child: Information for Partners, U.N. Office of the High Comm’r on
Human Rights, http://www.ohchr.org/EN/HRBodies/CRC/Pages/InfoPartners.aspx.
39
UNICEF is specifically mentioned in the CRC in Article 45.
40
U.N Committee on the Rights of the Child, Concluding Observations, U.N. Office of the High Comm’r
for
Human
Rights,
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&TreatyID=1
0&TreatyID=11&DocTypeID=5.
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International Human Rights Law Journal, Vol. 1 [2015], Iss. 1, Art. 4
provisions, known as “general comments” on thematic issues, and organizes “days of
general discussion” to address important and timely topics.41
It is important to note that even though the CRC Committee’s concerns and
recommendations can be pointed and controversial, the CRC Committee is not afforded
any enforcement mechanisms to carry out these recommendations.42 The CRC
Committee’s reports may help add to public pressure for specific policy changes by a
government, but the CRC Committee cannot mandate any government to make a
specific policy change.43
IV.
The U.S. and the CRC
The U.S. played a pivotal role in drafting the CRC between 1979 and 1989.44 In fact,
the Reagan and George H.W. Bush Administrations actively contributed to negotiating
the treaty’s text.45 U.S. negotiators pushed for the inclusion of articles addressing
individual rights, based on the U.S. Constitution’s Bill of Rights. 46 These included family
reunification, freedom of expression, freedom of religion, freedom of association and
assembly, privacy, and protection from abuse.47
In 1989, Republicans praised the final draft of the treaty. Rep. Chris Smith (R-NJ), in
his capacity as representative of the U.S. delegation to the United Nations before the
Third Committee of the U.N. General Assembly, said in a statement:
After 10 years of constructive dialogue, seemingly endless
consultations, and finally an agreement, the Commission on
Human Rights has presented the Convention on the Rights
of the Child to the UN General Assembly for adoption. The
United States participated actively in the drafting of the
convention. We believe that it represents a notable step
forward in the needed promotion and protection of the rights
of children. Although the convention is far from perfect – no
agreement ever is – the United States strongly believes in
the enumerated commitments and goals of the convention,
and it is our hope that the General Assembly will adopt the
text without change.”48
41
U.N. Committee on the Rights of the Child: Monitoring Children’s Rights, U.N. Office of the High
Comm’r for Human Rights, http://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIntro.aspx.
42
U.N. Convention on the Rights of the Child, supra note 26, art. 45(d).
43
See e.g., UN CRC Committee Issued Concluding Observations for 12 Countries, ECPAT, (Feb. 6,
2015), http://www.ecpat.net/news/un-crc-committee-issued-concluding-observations-12-countries.
44
Jonathan Todres, Mark E. Wojcik & Cris R. Revaz, The U.N. Convention on the Rights of the Child: An
Analysis of Treaty Provisions and Implications of U.S. Ratification, (Transnational Publishers 2006).
45
Id. at 14.
46
Cynthia Price Cohen, Role of the United States in Drafting the Convention on the Rights of the Child:
Creating a New World for Children, 4 LOYOLA POVERTY L.J. 9, 25-26 (1998).
47
Id.
48
See U.N. Doc. A/C.3/44/SR.38 (Nov. 10, 1989).
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Engman: And Then There Were Two
A Bush Administration official, Ambassador Tom Johnson, Representative to the U.N.
Commission on Human Rights, said that he was pleased to affirm his delegation’s
support for the draft resolution.49
However, the support of Bush Administration officials at the U.N. for the CRC did not
translate into immediate progress toward ratification. Instead, citing concerns on how
U.S. ratification would conflict with state laws on capital punishment and abortion,
President Bush did not sign the treaty.50
When President Clinton took office in 1993, pro-CRC advocates hoped that the
President would quickly sign the CRC in light of significant Congressional support. With
support from hundreds of nonprofit organizations, the U.S. Campaign for Ratification of
the CRC51 led a major effort to push the Clinton Administration to sign the treaty.52 A
bipartisan Senate resolution introduced in early 1993 noted that the U.S. was the only
Western industrialized country to not sign or ratify the CRC, and called on the President
to promptly sign and present the treaty to the Senate. The resolution had 45
supporters, including Sen. Richard Lugar (R-IN), Sen. Mark Hatfield (R-OR), Sen. David
Durenberger (R-MN), and Sen. Jim Jeffords (R-VT).53 Despite this pressure, the Clinton
Administration held off and refused to sign the CRC until the review process was
completed.54
In honor of longtime UNICEF Executive Director Jim Grant’s dying request to President
Clinton, at his memorial service, First Lady Hillary Rodham Clinton made an
announcement that took everyone by surprise: the United States would sign the
Convention on the Rights of the Child.55 “We owe it to him and to the children of the
world, to whom he dedicated his life,” said Clinton.56 In February 1995, U.S.
Ambassador to the United Nations, Madeleine Albright, signed the convention on behalf
of President Clinton.57
The Clinton Administration failed to complete the CRC treaty package and send it to the
Senate, partly in light of serious Republican opposition. However, in July 2000, the
49
See U.N. Doc. E/CN.4/1989/SR.55/Add.1 (June 26, 1989).
Cf. Saul Friedman, Bush holds back on UN convention, Newsday, Oct. 1, 1990, at 3.
51
Support U.S. ratification of the United Nations Convention on the Rights of the Child (CRC), joining the
rest of humanity in helping children live better lives, The Campaign for U.S. Ratification of the Convention
on the Rights of the Child (CRC), http://www.childrightscampaign.org.
52
Questions and Answers, The Campaign for U.S. Ratification of the Convention on the Rights of the
Child (CRC), http://childrightscampaign.org/the-facts/questions-a-answers-about-the-crc.
53
S. Res. 70, 103rd Cong. (1993-94).
54
Susan P. Limber & Brian L. Wilcox, Application of the UN Convention on the Rights of the Child to the
United States, 51 Am. Psychologist 1246 (1996).
55
See
Child’s
Rights:
The
Progress
of
Nations,
U.N.
Children’s
Fund,
http://www.unicef.org/pon95/chil0005.html.
56
Catherine Langevin-Falcon, Second Class Citizens, The Humanist Magazine (Nov/Dec 1998),
http://www.thirdworldtraveler.com/Children/SecondClassCitizens.html (last visited Mar. 19, 2015).
57
Id.
50
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International Human Rights Law Journal, Vol. 1 [2015], Iss. 1, Art. 4
Clinton Administration signed and submitted to the Senate the first two CRC optional
protocols.58 The third optional protocol was not yet open for signature.
Optional Protocols to human rights treaties are treaties in their own right. This means
that they are open to signature, must be ratified, and are only legally binding upon entry
into force. For this reasons, States may be a party to an Optional Protocol even if they
are not a party to the original treaty, as is the case with the United States and the first
two Optional Protocols to the CRC.
Upon taking office, President George W. Bush made it clear that it would not send the
CRC to the Senate.59 Like President Clinton, the Bush Administration supported the
two Optional Protocols to the CRC; the Senate approved these instruments in June
2002, and the United States officially became a party to these protocols in January
2003.60
With President Obama’s election in 2008, pro-CRC advocates once again had high
expectations that the Administration would move the CRC forward. After all, President
Obama had even mentioned the U.S. failure to ratify the CRC during his Presidential
campaign. In response to a question about the CRC during the Presidential Youth
Debate, Obama said, “It’s embarrassing to find ourselves in the company of Somalia, a
lawless land. I will review this and other treaties and ensure that the United States
resumes its global leadership in Human Rights.”61 Moreover, during Susan Rice’s
confirmation hearing to be U.S. Ambassador to U.N., Sen. Boxer asked her about the
CRC. Rice said that the Obama Administration supported CRC objectives and would
conduct a legal review of the treaty, though she acknowledged that it was a
“complicated” treaty.62
At the time of this writing, the Obama Administration has not submitted the CRC to the
Senate. At a recent meeting with CRC advocates and National Security Council
officials, it was clear that the Administration is NOT currently preparing the CRC treaty
package.63
58
S. Treaty Doc. No. 106-37 (2000).
The Bush Administration’s Representative to the U.N. Commission on the Status of Women,
Ambassador (and former Republican Congresswoman) Ellen Sauerbrey, said that “The CRC…
represents an international attempt to ensure children’s well being… However, the Convention then veers
off by granting – not protective rights for children – but autonomy rights that may actually harm rather than
strengthen the child.” See U.N. & Family Policy, U.S. Dep’t of State, Remarks to The World Congress of
Families III, Mexico City, Mexico, (March 29, 2004), http://2001-2009.state.gov/g/wi/31215.htm.
60
Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force
on January 1, 2013, U.S. Dep’t of State, http://www.state.gov/documents/organization/218912.pdf.
61
Walden University, Question 12: Human Rights Answers from Senators McCain and Obama, Youth
Debate 2008, http://www.youthdebate2008.org/video/question-12/#content.
62
Nomination of Hon. Susan E. Rice to be U.N. Representative, S. Hrg. 111–257, Jan. 15, 2009, at
http://www.gpo.gov/fdsys/pkg/CHRG-111shrg54640/pdf/CHRG-111shrg54640.pdf.
63
Interview with CRC campaign leaders and NSC officials, Feb. 13, 2015.
59
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V.
Opposition to the CRC
Conservative organizations were quick to attack the CRC, labeling it as a threat to U.S.
sovereignty and to parent’s rights; these claims still form the basis of the opposition’s
arguments today. In June 1991, the cover article in The New American called the CRC
“a whole new socialist manifesto for America” because it imposes open-ended
obligations on federal and state governments, and it gives “revolutionists in our state
and federal judiciaries… the opportunity to use this UN Convention in judicial assaults
against state and federal laws, state constitutions, and even the U.S. Constitution
itself.”64 In July 1991, an editorial in Concerned Women claimed, “this treaty would
supersede the Constitution” and weaken the role of parents.65 Another July 1991
article, in Focus on the Family’s Citizen, stated: “Warning! There is bipartisan support
with Congress for a legally binding United Nations treaty that could give our children
unrestricted access to abortion, pornography, gangs and the occult.”66
The conservative assault on the CRC continued well into the Clinton Administration. A
fundraising letter for Phyllis Schlafly’s Eagle Forum claimed that “…Hillary Clinton and
her liberal friends at the ‘Children’s Defense Fund’ are pushing to use the UN to sneak
their radical ‘children’s rights agenda’ into law!” Their goal, the letter says, is for
“government to take over the raising of children.”67
One of the most vociferous and longstanding critics of the CRC is Michael Farris, leader
of the Home School Legal Defense Association (HSLDA). For example, in 1999,
HSLDA issued a report called appropriately, The UN Convention on the Rights of the
Child: The Most Dangerous Attack on Parents’ Rights in the History of the United
States. It said that “…America will have its domestic policy subjected to foreign control
through the arbitrary whims of this Committee of Ten… It drastically subverts the
sovereignty of our nation.” And: “Under the UN Convention on the Rights of the Child, a
parent’s right to control the religion, health, and training of his child is virtually
nonexistent.”68
These organized and extremely active conservative groups impacted Republican
legislators. By the time the Clinton Administration signed the treaty in 1995,
Republicans were firmly entrenched in their opposition. Sen. Jesse Helms (R-NC), the
chairman of the Senate Foreign Relations Committee, sponsored a Senate resolution
64
William F. Jasper, Child Grab: Why Does The United Nations Want To Control Our Kids?, The New
American, June 18, 1991, at 4.
65
The United Nations: Encroaching on the Rights of America’s Parents, Concerned Women, July 1991, at
3.
66
U.N. Treaty Strips Parents of Rights, Focus on the Family Citizen, Vol. 5 No. 7, July 17, 1991, at 1.
67
Fax from Phyllis Schlafly on fundraising, President, Eagle Forum, to author (Sept. 25, 1995) (on file
with author).
68
Christopher J. Klicka, Christopher J. & William Estrada, The UN Convention on the Rights of the Child:
The Most Dangerous Attack on Parents’ Rights in the History of the United States, National Home School
Legal Defense Association (November 1, 1999), http://nche.hslda.org/cap/un_treaty_31607.pdf.
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International Human Rights Law Journal, Vol. 1 [2015], Iss. 1, Art. 4
stating bluntly that “[t]he President should not sign and transmit to the Senate that
fundamentally flawed convention.”69
Anti-CRC sentiment seems to have become Republican doctrine; both the 2008 and
2012 Republican Presidential Platform documents include specific opposition the CRC.
In 2012, the platform read:
Under our Constitution, treaties become the law of the land.
So it is all the more important that the Congress—the Senate
through its ratifying power and the House through its
appropriating power—shall reject agreements whose longrange impact on the American family is ominous or unclear.
These include the U.N. Convention on Women’s Rights, the
Convention on the Rights of the Child, the Convention on the
Rights of Persons with Disabilities, and the U.N. Arms Trade
Treaty…70
Farris’s latest strategy to counter the CRC and protect parents’ rights is to amend the
U.S. Constitution itself. He led efforts to introduce a joint Congressional resolution
proposing an amendment to the Constitution that enshrines parents’ rights. In the 113th
Congress, the House resolution had 81 supporters.71
VI.
Responding to the Opposition’s Arguments
A.
If ratified, would the CRC take precedence over the U.S.
Constitution, and federal and state laws?
A common argument is that because treaties automatically become “the supreme Law
of the Land,” the provisions of the CRC would automatically take effect; even if it
violates current federal and state laws or the Constitution itself.
This is simply not true. Human rights treaties ratified by the United States are
considered “non-self-executing,” meaning that the provisions of the treaty cannot be
binding without specific legislative action at federal and state levels.72 In Medellin v.
Texas, the United States Supreme Court addressed the issue of whether an
International Court of Justice ruling on U.S. compliance with its international obligations
under the Vienna Convention on Consular Relations automatically constituted binding
federal law enforceable in U.S. courts. The Court stated that treaties create binding
international obligations for the U.S., but do not create binding federal law enforceable
in U.S. courts in the absence of implementing legislation from Congress.73
69
S.Res. 133, 113th Cong. (as introduced June 14, 1995).
We Believe in America: 2012 Republican Platform, Committee on Arrangements for the 2012
Republican
National
Convention,
2012,
at
45,
available
at
https://cdn.gop.com/docs/2012GOPPlatform.pdf.
71
S.Res. 133, 113th Cong. (1995); H.R.J. Res. 50, 113th Cong. (2013).
72
Human Rights Treaties Becoming Part of US Law: Q & A, University of Nebraska-Lincoln,
http://www.unlhumanrights.org/01/0105/0105_04.htm.
73
Medellin v. Texas, 128 S. Ct. 1346 (2008).
70
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Furthermore, the majority opinion in Reid v. Covert stated that treaties had to be made
while “observing constitutional prohibitions.”74
It is true that under the Supremacy Clause, treaties are considered part of the law of the
land. However, while Congress has the power to ratify a treaty and enact implementing
legislation, the federal government has been reluctant to use its treaty power to infringe
on state sovereignty.75 Federalism is a fundamental aspect of the U.S. government and
its principles would not be destroyed by U.S. ratification of the CRC.
B.
Would U.S. ratification of the CRC impose federal
authority over states in sectors such as education, family
law, juvenile justice, etc.?
During the ratification process, the U.S. Government must address the Nation’s
separation of powers between the federal government and states. The CRC definitely
touches on many areas that are regulated by states, such as family law, education, and
juvenile justice. As with all treaty ratifications, the Senate would include a set of RUDs
that define the application of the CRC within the United States, including limits on its
application to state laws.76 This package of RUDs traditionally includes a clause that
ensures the United States would leave implementation of the treaty largely to the states.
C.
The CRC requires State Parties to report periodically to
the CRC Committee, which makes recommendations and
interpretations. Can the Committee tell us that we have
to change our laws, such as banning corporal
punishment?
The CRC requires State Parties to report periodically on implementation of the treaty to
the CRC Committee. The CRC Committee is empowered to ask questions and make
recommendations regarding a country’s children. Based upon the provisions of the
CRC, the CRC Committee could, and probably would, tell the United States to ban
corporal punishment.77
However, there is absolutely no provision in the CRC that gives the CRC Committee,
the U.N., or any other international body any authority to enforce such
74
Miliff, supra note 76.
Law, supra note 71, at 1870.
76
In 1994 the American Bar Association proposed a set of RUDs for the CRC, addressing issues
including corporal punishment, private education, and juvenile justice. See Individual Rights and
Responsibilities
(Report
No.
103),
American
Bar
Association,
available
at
http://www.americanbar.org/content/dam/aba/migrated/intlaw/policy/humanrights/rightsofthechild02_94.au
thcheckdam.pdf.
77
In 2011, the CRC Committee issued General comment No. 13 on the right of the child to freedom from
all forms of violence, that recommended an absolute prohibition in of all forms of violence against
children. See U.N. Committee on the Rights of the Child, 56th Sess., General Comment No. 13,
CRC/C/GC/13 (Feb. 17, 2011).
75
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recommendations.78 U.S. policy related to children would still, and always, be governed
by domestic legislation and not by international standards and norms. The CRC
Committee’s recommendations and interpretations are not binding in any way on any of
the countries that are not to the CRC.
In fact, the United States already reports to the CRC Committee, without any loss of
U.S. sovereignty, as a party to the Optional Protocol to the CRC on the Sale of Children,
Child Prostitution, and Child Pornography; and the Optional Protocol to the CRC on the
Involvement of Children in Armed Conflict.79 U.S. participation in the reporting
processes for these treaties has been a positive and useful exercise, and provides a
mechanism for the involvement of U.S. NGOs to help raise and address issues that
affect American children.
D.
Does the CRC grant children rights at the expense of
parents’ rights?
The CRC is not about pitting children’s rights against parents’ rights – it is about
ensuring that governments recognize the rights and needs of both children and parents.
Under the CRC, parental responsibility is protected from government interference. The
CRC repeatedly emphasizes the pivotal role parents play in their children’s lives. It
recognizes the family “as the fundamental group of society and the natural environment
for the growth and well-being of all its members and particularly children…” and
acknowledges “that the child, for the full and harmonious development of his or her
personality, should grow up in a family environment, in an atmosphere of happiness,
love, and understanding.”80 The CRC recognizes the role of parents many times
throughout the document; obligating states to take into account the rights and duties of
parents,81 specifying that, “[p]arents… have the primary responsibility for the upbringing
and development of the child.”82
The rights embodied in the CRC are rooted in the U.S. Declaration of Independence,
the U.S. Constitution, and federal and state law affecting the rights of American children
and parents. In fact, the Reagan and Bush Administrations contributed to the treaty
negotiations by pushing for articles on freedom of thought, conscience, and religion;
freedom of expression; freedom of association and assembly; privacy; protection from
abuse; family reunification; and periodic review of treatment – these articles are
congruent to longstanding U.S. federal and State laws. Their goal was to ensure that
the CRC recognized parents’ rights and focused on individual rights, rather than
promote socialism and government interference.
78
See U.N. Convention on the Rights of the Child, supra note 26.
U.N. Optional Protocols to the Convention on the Rights of the Child, supra notes 31, 32.
80
U.N. Convention on the Rights of the Child, supra note 26, see preamble.
81
Id. art. 3, 5.
82
Id. art 18.
79
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The apparent conflict between parental rights and the CRC stems from a misreading of
the CRC.83 Far from downplaying the importance of parents in a child’s life, the CRC
provides in Article 18 that “Parents…have the primary responsibility for the upbringing
and development of the child. The best interests of the child will be their basic
concern.”84 Moreover, Article 5 states, “States Parties shall respect the responsibilities,
rights and duties of parents…to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the exercise by the child of
the rights recognized in the present Convention.”85 Therefore, ratification of the CRC
would not abridge parental rights. Rather, it acknowledges that children have rights and
parents play a crucial role in protecting those rights and helping a child grow and
develop. The existing social and legal structure of the U.S. allows parents this type of
agency and so compliance with the CRC would not drastically affect existing U.S. law.86
E.
Does the CRC give children the right to sue their parents
who violate their rights?
The CRC does not give children the “right” to sue their parents. Any legal action
brought by children against their parents must be based on existing federal or state
laws, not on provisions contained in the CRC.87
F.
Because the CRC calls for freedom of religion, does it
prevent parents for making their children go to church, or
prevent parents from keeping children out of cults?
The Convention grants children the right to practice their religion free from government
interference. The CRC specifically recognizes the rights and responsibilities of parents
to guide their children in religious matters. This probably explains why the Holy See
and many countries with strong religious traditions have ratified the CRC. In addition,
many faith-based organizations support U.S. ratification of the CRC; such as Covenant
House, Evangelical Lutheran Church of America, Church Women United, World Vision,
the Anti-Defamation League, the Baha’is, the United Methodist Church, among others.
G.
Would the CRC’s provision on freedom of association
prevent parents from keeping their children out of violent
gangs?
The CRC does not usurp parents’ authority to prevent their children from associating
with persons of “dubious” character, such as pedophiles, gang members, etc. Parents
are responsible for ensuring their children do not associate with people who do not have
the best interests of their children in mind.
83
Miliff, supra note 76.
Id.
85
Id.
86
Id.
87
See Cynthia Price Cohen and Susan H. Bitensky, The United Nations Convention on the Rights of the
Child: Answers to 30 Questions, Child Rights International Research Institute (1994).
84
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As does the First Amendment to the U.S. Constitution, the CRC recognizes the right of
children to peacefully assemble – but within the context of parents’ responsibilities to
guide and protect their children.
H.
Does the CRC provide children with an “unrestricted” right
to access any information they want, including
pornography off the Internet?
As does the U.S. Constitution, the CRC recognizes that children have rights to
information. But there is no language in the CRC that grants children the right to
“unlimited” freedom of information, including access to pornography and other obscene
materials. The CRC specifically notes the rights and responsibilities of parents to guide
and protect children.
I.
We already have strong laws and institutions regarding
children. Why should the United States ratify the CRC?
Americans care deeply about conditions for children around the world, and believe that
our Nation should try to help them. However, because the U.S. has not ratified the
CRC, it cannot partner with organizations like UNICEF in using the CRC as a tool to
support children and families around the world. This limits the U.S. from exerting the
strongest possible leadership internationally in making a difference for the world’s
children.
U.S. ratification of the CRC would reinforce America’s leadership to help children and
families, and strengthen our ability to partner with UNICEF and other organizations to
help governments respond to the needs of children and families.
The U.S. ratifying the CRC would provide guidance for evaluating inconsistent existing
policies for children. Many different agencies and departments release policies
regarding children’s issues, such as health, education, welfare, and abuse.88 . The
CRC provides a comprehensive framework for our country to look at conditions for
children and families, to document and share publicly information on those conditions,
and to identify areas where we can strengthen laws and systems that support children
and families.
The CRC requires certain reporting requirements during the treaty’s implementation and
enforcement.89 The process of assessing the CRC’s implementation provides
opportunities for the CRC Committee, and for U.S. NGOs, to raise questions and
88
Examples of agencies include, but are not limited to, Administration for Children and Families, the
Department of Education, and the Department of Child and Family Services.
89
See U.N. Convention on the Rights of the Child, supra note 26, at art. 44.
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concerns aboutthe condition of children in the U.S, and to push the U.S Government to
be more accountable for its policies.90
The U.S. Government already reports to the CRC Committee on implementation of the
Optional Protocols on Children in Armed Conflict and the Sale of Children, and that
process has proven to be very important to highlighting and addressing issues facing
children in the United States
Ratification would give the U.S. the opportunity to be represented on the Committee on
the Rights of the Child.91 This would allow the U.S. to continue to participate in the
ongoing international dialogue on children’s issues and to maintain a credible presence
in the international human rights conversation.
Failure to ratify shows the world that the U.S. remains silent against children’s rights. If
the U.S. did speak up for children, it would be easy to question the U.S. credibility and
ignore its voice.92
J.
Does the CRC make any difference for children around the
world?
Clearly, the CRC is not a panacea to solve all problems facing children – even after
twenty-five years of the CRC, many children around the world still cannot go to school,
continuously experience exploitation and sexual abuse, and lack access to basic health
services.
However, as a result of nearly every nation ratifying the CRC, the CRC gives
international institutions, local organizations, and citizens a powerful tool to ask
governments whether everything possible is being done to protect the nation’s children.
The ability to use the CRC to focus on specific issues has helped make the world a
better place for children. This is exemplified in:
a)
Malawi, which has the highest incidence of child
marriage in the world, has seen local organizations
use Malawi’s ratification of the CRC to help convince
tribal leaders to speak out against this harmful
traditional practice – which resulted in hundreds of
communities agreeing to stop the practice.93
90
Susan Kilbourne, U.S. Failure to Ratify the U.N. Convention on the Rights of the Child: Playing Politics
with Children’s Rights, 6 Transnat’l L. & Contemp. Probs. 437, 459 (1996).
91
U.N. Convention on the Rights of the Child, supra note 26, at art. 43(3).
92
Elizabeth Bartholet, Ratification by the United States of the Convention on the Rights of the Child: Pros
and Cons from a Child’s Rights Perspective, The ANNALS of the American Academy of Political and
Social Science Vol. 633, 83 (2011).
93
Malawis Parliament Voted Unanimously to End Child Marriage, Ms. Magazine (Feb. 15, 2015),
http://www.msmagazine.com/news/uswirestory.asp?ID=15461.
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b)
c)
d)
Egypt saw the CRC used as a major tool in the
campaign against female genital mutilation, leading to
a ministerial decree and a statement by the country's
top Muslim institution against the practice.94
India instituted universal, free elementary education
as a response to its ratification of the CRC.95
UNICEF used Ukraine’s ratification of the CRC to help
the Ukrainian government transform the State’s
childcare system to support foster family care for
orphaned children instead of institutionalizing them.96
Throughout the world, UNICEF and other organizations have used the CRC to improve
birth registration, a fundamental right under the CRC. Birth registrations are crucial to
children’s ability to access education, health care, and social services.97
VII.
Conclusion
This article unequivocally supports U.S. ratification of the CRC. More importantly,
however, is the notion that the debate around ratification must be based on reality and
facts, rather than paranoia and misinformation. Let me leave you with a passage from a
blog by John Boonstra, writing about the tactics of the CRC opposition:
[If the CRC is ratified] [n]o ill-willed judges will be found
knocking on every front door to lay down their unsolicited and
unimpeachable pronouncements of whether or not a child can
be sent to his room. The example is extreme to the point of
frivolousness, but to hear opponents' wild claims – "a group
of unaccountable so-called experts in Switzerland [would]
have a say over how children in America should be raised,
educated and disciplined," claims Steven Groves of the
Heritage Foundation – the caricature is not unwarranted.
Only by creating a fictitious behemoth, an utterly chimerical
beast of UN tyranny, can such frantic fear-mongerers distort
what is an international agreement affording children certain
basic human rights. That America has not given its fullfledged support to this premise is scandalous, and to allow
94
Media Backgrounder: Female Genital Mutilation/Cutting (FGM/C) in Egypt, UNICEF Media Center,
http://www.unicef.org/egypt/media_4115.html.
95
From Today, Every Child Has a Right to Education, The Times of India (Apr. 1, 2010, 09:48AM),
http://timesofindia.indiatimes.com/india/From-today-every-child-has-a-right-toeducation/articleshow/5749632.cms.
96
Ukraine, Child Protection Programme, UNICEF, http://www.unicef.org/ukraine/activities_11386.html
(last visited Mar. 19, 2015).
97
Child
Protection
from
Violence,
Exploitation
and
Abuse,
UNICEF,
http://www.unicef.org/protection/57929_58010.html (last updated Jan. 13, 2014).
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such shrill voices to win the day would be an abdication of
both our principles and the very concept of reason.98
Unfortunately, until now, that is exactly what has happened, and the United States
remains a lonely holdout in ratifying the most widely accepted human rights treaty in
history.
98
Boonstra, John. The UN is Going to Steal Our Children, UN DISPATCH (Feb. 26, 2009, 11:09AM),
http://www.undispatch.com/the-un-is-going-to-steal-our-children/.
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